AuthorBerger, Linda L.
PositionAntonin Scalia

    What constitutes judicial influence and how should it be measured? Justice Antonin Scalia was known for his memorable phrasing ("this wolf comes as a wolf," (1) "[l]ike some ghoul in a late-night horror movie" (2)) and for being cited at a rate twice that of his colleagues. (3) Justice Elena Kagan gave him credit for transforming "all of us" into statutory textualists and constitutional originalists. (4) Since his death, critics have provided mixed reviews of the extent of his influence on the Supreme Court, other judges, law students, and the general public. (5)

    Curious about the broader role rhetoric plays in judicial influence over time, we undertook a rhetorical-computational analysis of the 282 majority opinions that Justice Scalia wrote during his thirty years on the Supreme Court. The resulting study casts doubt on the ability of judicial authors, including Justice Scalia, to control their influence on later courts, at least as far as influence is reflected in citation counts.

    Blending rhetorical and computational methods, we explored potential connections between the rhetorical construction of the opinions Justice Scalia wrote for the Court and the ways in which later courts treated them as precedent. (6) One important finding from our study is that relying on only the vote counts of the Justices obscures the actual failures of unanimity that may generate long-lasting uncertainty. When there are concurring opinions in decisions whose vote counts are unanimous--opinions we reclassified as "deceptively unanimous"--later courts may continue to debate one or more issues over a long period of time, and that may result in a "long tail" of more frequent citations, not because of the majority opinion's influence but because of the continuing conversation. If later courts diverge about the meaning or application of the rules established in the majority opinion, they may rely on a concurring opinion that gains or loses adherents over time. In these circumstances, both the original majority opinion and the concurring opinion will continue to be cited. And more frequent citations--to both the majority and the concurrence or concurrences--will extend long after the debate is settled as still-later cases recount the history of the dispute. (7)

    A second finding emerging from our analysis is that Justice Scalia's rhetorical statements appeared to be more or less attractive to later courts depending on the particular rhetorical context of the later judicial author. Although this finding may seem obvious, our analysis provided specific details. The federal courts of appeals, for example, were more likely to "cite" than to "follow" Justice Scalia's precedential rules. (8) Perhaps reflecting both their institutional role and their greater resources, the federal courts of appeals tended to more extensively discuss both the arguments made and the rules established in Justice Scalia's majority opinions while the federal district courts and the state courts were somewhat more likely to simply follow the rules. (9) These tendencies toward more extensive discussion were somewhat more pronounced when the later courts were writing opinions they knew would be "reported" rather than "unreported." (10)

    Finally, our analysis illuminates how difficult and complex it is to discern and describe the effects of rhetorical structures, argument frames, and word choices on judicial decisionmaking and opinion writing. For example, we suspect that Justice Scalia's stated preferences for constructing particular kinds of rhetorical rule statements--bright lines, broad categories, strict limits--may in fact have resulted in more frequent citations, which some observers might translate into an inference of greater influence. Our analysis, however, indicates that these more frequent citations over time often were the result of Scalia rule statements that either created or contributed to lingering disputes about interpretation or application or both. (11) That kind of sustained citation frequency likely is not the long-lasting influence Justice Scalia sought.

    Our purpose in undertaking this rhetorical-computational analysis was to discern patterns and connections across a substantial data base and, because of the breadth of the project, to be able to support our inferential findings with some confidence. (12) This "medium data" approach (13) provides a larger and more data-driven perspective than traditionally practiced by historians or rhetorical analysts, but it remains an interpretive mode, its data collection narrower and its assessment goals more modest than those asserted by researchers conducting quantitative analysis of so-called "big data." In projects such as this one, analysis and interpretation of the collected data proceeds through recursive rounds of hypothesis, computation, depiction, and further hypothesis. (14)

    We have made what we think are reasonable assumptions about the role of judicial discretion and ideology in judicial decisionmaking. First, we assume that ideology alone does not drive most of the decisions made by judges, especially judges in the lower federal and state courts who are bound by vertical precedent. (15) Second, we assume that these judges--though bound by precedent--often have choices among the precedents they refer to, and especially about the manner in which they do so, including whether to "cite" or to "follow" a particular precedent. Because we hope to better understand how a later judge has been influenced to select particular language to rely upon in an opinion's reasoning or decision, we necessarily assume that the later judge was not compelled in every case to follow an earlier decision. That is, we think circumstances not controlled by precedent (at least according to the arguments of the parties) happen frequently enough to make our project worthwhile. And even when the opinion writer is compelled to follow a particular precedent, we expect that the judge retains discretion to choose among the elements in the earlier opinion and to emphasize those she finds more crucial. When judges are engaged in this process, aided by the arguments of lawyers for the parties, they are engaged in "an organized and systematic process of conversation by which our words get and change their meaning." (16)

    We know that language choices govern the content and affect the lasting influence of judicial opinions because lawyers and judges treat the words and phrases of earlier opinions as rules (17) with consequences for later cases. When an earlier opinion governs a later case, the earlier opinion's text is treated as the "repository" of information that determines what the law is and what its impact might be. (18) But the author's language choices alone do not determine the staying power of judicial opinions. It's not only the rhetoric selected by the judicial opinion's author that determines when, whether, and how a later judge will pick it up and use it, it's the complex rhetorical situation in which the later judge finds herself.


    Scalia's words were his most potent weapon in his struggle to get the Court to rethink first principles and apply his views of freedom. ... But his words were also his greatest weakness. (19) In 2010, the Cross study of citations to Supreme Court opinions found an "extremely high rate" of citations to Justice Scalia's majority opinions. (20) Professor Cross determined that the number of lower court citations and the number of positive citations to Justice Scalia's opinions occurred at more than twice the rate of the average of other Justices during the period of his study. (21) Scholarship like the Cross analysis--supported by Justice Scalia's nearly thirty years on the Court and his widespread reputation as a skilled judicial author--bolstered our choice of Scalia texts as the object of study. (22)

    Because majority opinions are a richer source for study of a Justice's long-term influence, we focused on those 282 cases rather than on Justice Scalia's more well-known dissents. (23) We began with a couple of hypotheses about why Justice Scalia's majority opinions might be especially influential, if in fact they were.

    1. Rhetoric

      Our first hypothesis was the obvious one: Justice Scalia's rhetoric, his often-remarkable use of language. But we considered rhetoric broadly, from the author's choice among his sources of support to his construction of argument frames to his selection of images and words. Professor Cross had suggested that Justice Scalia's approach to writing opinions "translate[d] into considerable precedential influence for lower courts" and speculated that his "relatively maximalist" approach might be the reason for his greater precedential influence. (24) Because whether an opinion is maximalist or minimalist is more a matter of the scope of the decision than of the doctrine involved, the distinction is discernible primarily in contrast with the opinions of other Justices. (25)

      More generally, Professor Cross had suggested that fundamentalist opinions--those that, like some Scalia opinions, make large, sweeping, or broad changes in the law--might offer more opportunities for citations while, somewhat paradoxically, opinions that establish clear rules--like other Scalia opinions--might yield less litigation, and thus fewer citations, than opinions containing standards. (26) Again, although rules and standards are notably difficult to differentiate without context and comparison, we thought qualities such as maximalism, fundamentalism, and the setting of rules rather than standards might be detected in the phrasing of Justice Scalia's majority opinions (for example, maximalism might be linked to judicial expressions of certainty). (27)

    2. Originalism

      Another possible source of influence might be Justice Scalia's philosophy of originalism. (28) A number of authors have challenged the premise that this...

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